1. To determine the availability of a self-defense or defense of another instruction under
K.S.A. 21-3211, we apply a two-prong test. The first prong is subjective--did the
defendant sincerely believe it was necessary to kill or use potentially lethal force in
order to defend himself or herself or another? The second prong is objective--was the
defendant's belief reasonable?

2. As a general rule, the doctrine of self-defense cannot be invoked to excuse a killing or
the use of potentially lethal force done in mutual combat willingly entered into.

3. K.S.A. 2000 Supp. 60-460 defines hearsay as evidence of a statement made by someone
other than the witness testifying which is offered to prove the truth of the matter
asserted.

4. To use the statements of an allegedly unavailable witness under K.S.A. 2000 Supp.
60-460(d)(3), there must first be a showing of an exhaustive search for the witness.

5. Transferred intent is an accepted principle in the courts of this state. Under the
appropriate facts it is applicable to the crime of discharging a firearm at an occupied
dwelling.

6. The mere fact that an officer testifies that the defendant lied, when it is obvious that
the defendant did lie, is not cause to grant a mistrial.

PIERRON, J.: Marlon D. Walker appeals his conviction by a jury for one count of
discharging a firearm at an occupied dwelling and one count of criminal possession of a
firearm. Walker argues there was insufficient evidence to support his convictions and the
trial court erred in not giving a self-defense instruction, excluding testimony, and failing to
grant a mistrial.

Elesha Toles held a birthday party at her apartment. She testified that when she heard
gunshots, she told everyone to lie down on the floor. She testified the gunshots were loud
and sounded close by. There were bullet holes in her kitchen walls and in a table and a chair
that were not there before the shooting.

Noel Mapes, an armed security guard for the apartment complex, heard the gunshots
and ran to the parking lot in front of Toles' apartment. He testified he saw a man standing in
front of Toles' apartment firing across the parking lot. When he heard return fire coming
from the other side of the parking lot, he turned and recognized Walker as the shooter.
Walker ran from the scene after returning approximately six shots towards Toles' apartment.

Mapes testified that Walker later returned to the scene and was wearing the same
clothes, a tan shirt with dark stripes and tan shorts, as when Mapes had seen him earlier.
Mapes asked Walker for his gun and Walker said he did not have it. A woman began yelling
at Walker. Mapes grabbed the woman and Walker began to walk away.

Officer Lee Eisenbise testified that when he arrived at the apartments, Katrina Walker
was yelling for the police. As he approached the woman, he noticed a man wearing tan pants
and no shirt start walking away. Eisenbise ordered the man to stop, but the man began
running and Eisenbise lost sight of him. Minutes later, Officer Erik Landon stopped a man
wearing khaki pants and no shirt, and carrying a red shirt. Landon took the man back to the
scene and Mapes identified him as Walker and as the shooter.

The police searched Katrina's apartment and found a box of .357 caliber ammunition.
Katrina is Walker's sister, and he was staying at her apartment. Bullet fragments collected
from Toles' apartment and the station wagon in front of her apartment were consistent with
the ammunition found in Katrina's apartment and consistent with being fired from a .357
magnum handgun.

A jury convicted Walker of criminal discharge of a firearm at an occupied dwelling
and criminal possession of a firearm.

The first issue raised in this appeal challenges the trial court's refusal to give a self-defense
instruction requested by Walker. In State v. Hunter, 241 Kan. 629, 644, 740 P.2d
559
(1987), this court summarized the pertinent scope of appellate review:

"In a criminal action, a trial court must instruct the jury on the law applicable to
the theories of all
parties where there is supporting evidence. State v. Davis, 236 Kan. 538, Syl.
¶ 4, 694 P.2d 418 (1985). . .
. When considering the refusal of a trial court to give a specific instruction, the evidence must be
viewed by the appellate court in the light most favorable to the party requesting the instruction."

In determining the availability of a self-defense or defense of another instruction under
K.S.A. 21-3211, we have applied a two-pronged test. The first prong is subjective--did the
defendant sincerely believe it was necessary to kill or use potentially lethal force in order to
defend himself or herself or another? The second prong is objective--was the defendant's
belief reasonable? State v. Jordan, 250 Kan. 180, 185, 825 P.2d 157 (1992);
State v. Childers,
222 Kan. 32, 48, 563 P.2d 999 (1977). The defendant, under the second prong, must "show
the existence of some facts that would support such belief." State v. Burgess, 245
Kan. 481,
Syl. ¶ 5, 781 P.2d 694 (1989).

Walker now argues that while there was little evidence presented to show how the
shooting began and the role each person played in the shooting, the absence of such evidence
should not be used to prevent him from utilizing a self-defense instruction. He also argues
that whether he was the aggressor remained a question for the jury and the trial court invaded
the province of the jury by deciding that the situation was something akin to a wild west
shootout. He contends the fact that his shots were wild, striking a car and an apartment,
would support the contention that if he was seen shooting, he was simply returning fire.
Walker did not testify. There was no other testimony concerning who had started the
shooting.

In Burgess, 245 Kan. 481, Burgess was involved in a barroom brawl which
began when
he or someone sitting with him used a racial epithet as Jari Wills walked past them. Thinking
Burgess had spoken, Wills jabbed him several times in the chest with his finger and told
Burgess not to call him that again. The fight began when someone threw a punch at Wills,
and it ended within a short time when Wills was stabbed. All participants were charged with
aiding and abetting second-degree murder; no one was charged as a principal. Burgess denied
taking any aggressive action. Nonetheless, he challenged the trial court's refusal to give an
instruction on self-defense. The Burgess court concluded there was no evidence
which would
justify the use of a deadly weapon against Wills. 245 Kan. at 487. Thus, the request for the
self-defense instruction was properly refused.

For the trial court in the present case, the significance of Burgess was the
court's
quoting the following excerpt from 40 Am. Jur. 2d, Homicide § 142:

"'As a general rule, the doctrine of self-defense cannot be invoked to excuse a
killing done in
mutual combat willingly entered into, although the mere fact that one who kills another who
seems to
be about to make a murderous assault upon him was willing to enter into a fight with the decedent
with deadly weapons does not destroy his right to rely on self-defense as justification for the
killing, if
he acted solely for the protection of his own life, and not to inflict harm upon his adversary. But
the
view has been taken that one willingly entering into a mutual combat is not justified or excused in
taking life unless he has withdrawn in good faith and done all in his power to avert the necessity
of
killing.'" 245 Kan. at 487.

The "mutual combat rule" cited by the court in Burgess is covered by the
Kansas
statutes on self-defense. The general theory of self-defense is provided in K.S.A. 21-3211: "A
person is justified in the use of force against an aggressor when and to the extent it appears to
him and he reasonably believes that such conduct is necessary to defend himself or another
against such aggressor's imminent use of unlawful force." K.S.A. 21-3214(3) sets the
underpinnings of "mutual combat" by providing that using force in self-defense is not
available to a person who:

"Otherwise initially provokes the use of force against himself or another, unless:

"(a) He has reasonable ground to believe that he is in imminent danger of
death or great
bodily harm, and he has exhausted every reasonable means to escape such danger other than
the use of force which is likely to cause death or great bodily harm to the assailant; or

"(b) In good faith, he withdraws from physical contact with the assailant
and indicates
clearly to the assailant that he desires to withdraw and terminate the use of force, but the
assailant continues or resumes the use of force."

"The doctrine of self-defense cannot be invoked to excuse a killing done in mutual
combat
willingly entered into. The individual who willingly provoked the mutual combat is not justified
or
excused in taking life unless he has withdrawn in good faith, has communicated that withdrawal to
his
opponent, and has done all in his power to avert the necessity of killing."

In this case, the only evidence presented at trial of the shooting was the testimony of
Mapes, the security officer on duty at the apartment complex that evening. Mapes testified he
had been acquainted with Walker during the past 7 or 8 months and knew him as "Jason."
Mapes testified he heard two gunshots and ran to the parking lot where the shots were fired.
He saw a man standing in front of Toles' apartment, pointing a gun across the parking lot.
The man fired two shots across the parking lot. Because the man was in an unlighted area,
Mapes could not identify him. Mapes aimed his gun and told the man to halt and drop his
gun.

Mapes testified that several people came out of Toles' apartment behind the man who
had fired the gun. Then Mapes heard a gunshot from behind him and the shattering of the
back window of a station wagon parked in front of Toles' apartment. Mapes turned around
and saw the second shooter approximately 30 yards away. He recognized the second shooter
as Walker. Walker was standing under an overhead light near a dumpster on the street
corner. Mapes saw Walker fire his gun five more times toward Toles' apartment. Mapes told
Walker to halt and Walker ran from the scene.

There was no evidence that would have supported a finding that Walker acted in a
reasonable belief that his own safety depended upon his use of force against another. Walker
did not testify in his own behalf. He did not call any other witnesses whose testimony would
have supported a finding that he reasonably believed he had fired at the first shooter only in
self-defense. The act of returning gunfire in a shoot-out is not, by itself, an act of self-defense.
We agree with the trial court that the only evidence showed that the confrontation between
Walker and the other shooter was mutual combat. There was no evidence justifying a self-defense
instruction.

Next, Walker argues the trial court abused its discretion in not allowing testimony
concerning statements made by Sharris Nelson.

The admission of evidence lies within the sound discretion of the trial court. An
appellate court's standard of review regarding a trial court's admission of evidence, subject to
exclusionary rules, is abuse of discretion. State v. Lumley, 266 Kan. 939, 950, 976
P.2d 486
(1999). Judicial discretion is abused when judicial action is arbitrary, fanciful, or
unreasonable. If reasonable persons could differ as to the propriety of the action taken by the
trial court, then it cannot be said that the trial court abused its discretion. State v.
Stallings,
262 Kan. 721, Syl. ¶ 6, 942 P.2d 11 (1997).

Outside the presence of the jury, Walker proffered the testimony of Officer Bachman
as to statements made by Sharris Nelson. Officer Bachman testified that for identification
purposes, he took Nelson to the police car where Walker was sitting and asked if she could
identify him as the shooter. Officer Bachman testified that Nelson looked at Walker and that
she said she "didn't believe he was the shooter, but he was there."

Walker initially argued that Nelson's statements were not hearsay since they were not
being offered for the truth of the matter. However, Walker claimed that if the trial court
considered the statements to be hearsay, then they fell within the excited utterance exception
to the hearsay rule. The court held that Nelson's statements were being offered for the truth
of the matter and did not fall within any hearsay exceptions. Following a brief recess, Walker
indicated that he had directed the court to the wrong hearsay exception and that Nelson's
statements were admissible under the general necessity/present sense impression exception to
the hearsay rule.

The trial court ruled that Nelson's statements were hearsay and that it had no
evidence before it of whether Nelson was unavailable under the general necessity exception.
However, the court permitted Walker to proffer the evidence of his investigator, Sue Neeley,
as to efforts made in attempting to contact Nelson. Neeley testified that she had tried to call
Nelson, made three attempts to knock on doors at the apartment complex where the
shooting occurred, and called all the witnesses listed on the police report in an attempt to find
Nelson. On cross-examination, Neeley testified she had not attempted to contact Nelson at
her home address or place of employment listed on the police reports. Walker also requested
permission to call the prosecutor to testify that the State had subpoenaed Nelson, she had not
appeared pursuant to the subpoena, and this fact supported a finding that Nelson was
unavailable.

The trial court stated that Walker could call the prosecutor to the stand, but the court
would not allow a party to rely on the representations of another party concerning a witness'
unavailability as a substitute for the party's own duty to search. The court held that it was
incumbent upon the party who wished to bring a person before the court to do an exhaustive
search, and at a minimum to go to the place of employment and the last known residence if
that information is available. The court found Walker had not performed an exhaustive
search and consequently there was not a sufficient showing that Nelson was unavailable. We
agree.

Walker also argues Nelson's statements were not hearsay. Without any supporting
authority, he argues Nelson's testimony does not go to the truth of the matter asserted, since
it neither proves nor disproves the identity of the shooter. Walker argues that since Mapes'
identification of the shooter was questionable because of the error of the color of clothes
worn by the shooter, Nelson's statements show additional confusion as to the identity of the
shooter.

The trial court did not abuse its discretion in finding Nelson's statements were
hearsay. K.S.A. 2000 Supp. 60-460 defines hearsay as evidence of a statement made by
someone other than the witness testifying which is offered to prove the truth of the matter
asserted. Contrary to statements of defense counsel, Nelson's statements were being offered
as an eyewitness identification that Walker was not the shooter.

Walker also argues on appeal that Nelson's statements fall within the excited utterance
exception to hearsay statements in K.S.A. 2000 Supp. 60-460(d)(2). Walker abandoned this
argument before the trial court when he told the court he was mistaken about which hearsay
exception applied and that he would be using the general necessity exception in K.S.A. 2000
Supp. 60-460(d)(3) for authority. We do not consider issues raised for the first time on appeal.
"An issue not presented to the trial court will not be considered for the first time on appeal."
State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999).

Even considered on its merits, we find little evidence to support the contention that
Nelson's statements resulted from being startled sufficient to cause the requisite nervous
excitement to qualify for the exception.

Walker additionally argues that even if the trial court correctly held that Nelson's
statements were inadmissible hearsay, the statements still should have come into evidence
under rules of fundamental fairness. Walker contends it was crucial to his defense to elicit
testimony that the shirt collected by the police did not match the description given by Mapes
and that a second eyewitness could not identify him as the shooter. Walker's desires do not
overcome the court's duty to keep legally unreliable evidence from coming before the jury.
We also note that no evidence exists in the record that Nelson was actually an eyewitness to
the shooting.

Next, Walker argues there was insufficient evidence to support his convictions. When
the sufficiency of the evidence is challenged in a criminal case, the standard of review is
whether, after review of all the evidence, viewed in the light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986
P.2d 387
(1999). A conviction of even the gravest offense may be sustained by circumstantial evidence.
Smith, 268 Kan. at 236.

There is sufficient evidence in this case to support a conviction based on an
eyewitness identification that Walker was involved in mutual combat with another shooter
standing in front of Toles' apartment. There was also evidence that bullet holes from the
gunfight were found in Toles' apartment that were not there before the gunfight had started.
The jury was sufficiently instructed concerning Mapes' eyewitness identification, and the jury
was allowed to judge the reliability of the identification.

Walker also addresses the sufficiency argument from the standpoint that the doctrine
of transferred intent does not allow the intent to harm a person to transfer to the intent to
harm a dwelling. Walker cites no cases supporting his argument other than those concerning
the general theory of transferred intent.

In the present case, the jury received the following instruction on the doctrine of
transferred intent:

"When a criminal act is directed against one other than the intended victim, the
responsibility of
the actor is exactly as it would have been had the act been completed against the intended victim.
In
other words, the requisite criminal intent may be transferred from an intended victim to an
unintended
victim."

"The fact that the homicidal act was directed against one other than the person
killed does
not relieve the slayer of criminal responsibility. It is generally held that such a homicide
partakes of the quality of the original act, so that the guilt of the perpetrator of the crime is
exactly what it would have been had the assault followed upon the intended victim instead of
another. (1 Wharton's Criminal Law and Procedure, Homicide, § 193, p. 438.)"

In State v. Stringfield, 4 Kan. App. 2d 559, 561, 608 P.2d 1041, rev.
denied 228 Kan. 807
(1980), the court applied the transferred intent doctrine to aggravated battery. The court held
that while a specific intent to injure was a necessary element of aggravated battery, under the
doctrine of transferred intent, the intent to injure could be transferred to the harm to a
bystander who was unintentionally injured. The Stringfield court noted:

"'Under this rule, the fact that the bystander was killed instead of the victim
becomes immaterial,
and the only question at issue is what would have been the degree of guilt if the result intended
had
been accomplished. The intent is transferred to the person whose death has been caused, or as
sometimes expressed, the malice or intent follows the bullet.'" 40 Am. Jur. 2d, Homicide §
11, pp. 302-303." 4 Kan. App. 2d at 561.

In State v. Garza, 259 Kan. 826, 916 P.2d 9 (1996), the court addressed the
transferred
intent doctrine in a shootout situation where another shooter's bullet, not the defendant's
bullet, caused a bystander's death. The court held the defendant's act caused no injury and
the doctrine did not apply, but the court later discussed the defendant's liability as an aider
and abettor. 259 Kan. at 828-30. In discussing transferred intent, the court stated:

"Under the doctrine of transferred intent, the fact that a reckless act was directed
against one other
than the person injured does not relieve the actor of criminal responsibility. It is generally held
that
such an act partakes of the quality of the original act, so that the guilt of the perpetrator of the
crime is
exactly what it would have been had the act been directed at the intended victim instead of
another."
259 Kan. at 829.

Here, the doctrine of transferred intent is applicable because Walker and the shooter
standing in front of Toles' apartment intended to injure each other by conducting a shootout
with multiple shots fired by each person. The bottom line is that Walker fired his gun at a
person standing in front of Toles' apartment. Gratefully, no one was injured in Toles'
apartment. However, Walker's criminal intent to shoot another person was transferred into
the criminal intent required for the commission of criminal discharge of a firearm into an
occupied dwelling. Walker clearly must have known that his shots would hit the apartments
if he missed the other gunman.

Last, Walker argues the trial court erred in not granting a mistrial based on the
testimony of Officer Landon.

K.S.A. 22-3423(1)(c) permits the trial court to declare a mistrial when prejudicial
conduct makes it impossible to proceed with the trial without injustice to either the
defendant or the prosecution. The decision to declare a mistrial is within the trial court's
sound discretion and will not be disturbed on appeal unless there is a clear showing that such
discretion was abused. Again, judicial discretion is abused when no reasonable person would
adopt the view taken by the trial court. State v. Rinck, 256 Kan. 848, 853, 888 P.2d
845
(1995).

The trial court's power to declare a mistrial is to be used with great caution, under
proper circumstances, to ensure that all parties receive a fair trial. When an event of
prejudicial misconduct, the damaging effect of which cannot be removed by admonition and
instruction, is presented to a jury, the trial judge should declare a mistrial. State v.
Chandler,
252 Kan. 797, 801, 850 P.2d 803 (1993). The defendant has the burden of proving he or she
was substantially prejudiced by a trial court's decision. State v. Hammon, 245 Kan.
450, 456,
781 P.2d 1063 (1989).

During direct examination, the State asked Officer Landon what Mapes had said about
the man in the back seat of the patrol car. Officer Landon responded, "He positively
identified Robert A. Walker--well, he stated his name was Robert A. Walker, he [Walker] lied
to me about his name--as being one of the individuals who was firing towards three black
males."

Walker did not contemporaneously object to Officer Landon's statement. "'A party
must make a timely and specific objection to the admission of evidence at trial in order to
preserve the issue for appeal.'" State v. Sims, 265 Kan. 166, 174, 960 P.2d 1271
(1998) (quoting
State v. Cheeks, 258 Kan. 581, 593, 908 P.2d 175 [1995]). Rather, Walker
cross-examined
Officer Landon and then raised an objection after the jury had been sent home for the
evening.

Walker argued that Officer Landon's statement that Walker had lied to the police was
in and of itself a highly prejudicial remark and not warranted under the circumstances when
Officer Landon could have simply stated that Mapes identified the suspect in custody. The
State contended that the comment was unsolicited and came out only as a clarification of the
officer's police report. The trial court held that Officer Landon's comments did not rise to
the level sufficient to warrant a mistrial. The court also found, based on the colloquy when
the statement came out, there was no bad faith on the part of the prosecution and the witness
just blurted out the statement.

We find no abuse of discretion in the trial court's decision not to grant a mistrial.
First, Walker did not contemporaneously object to Officer Landon's statement and the trial
court lost the opportunity to admonish the jury to disregard it. Second, we agree with the
trial court that Officer Landon's statement was not of such a prejudicial nature to warrant a
mistrial. As pointed out by the State, the jury had already heard testimony from Mapes that
Walker had lied to him about his name, and it should have been no shock to the jury that
Walker had lied to Officer Landon about his name also. Further, Officer Landon's statement
was not a personal opinion of Walker's guilt, but rather a true statement that Walker lied
about his name. See State v. Steadman, 253 Kan. 297, 304, 855 P.2d 919 (1993)
(police
witnesses can testify from their experience as to a role the defendant played in an illegal
enterprise--they cannot testify that in their opinion the defendant was guilty of the crime).